document

Civil Legal Aid

in Ireland:

Forty Years OnCivil Legal Aid

in Ireland:

Forty Years On

“It is not enough to set up a scheme for the

provision of legal aid to necessitous persons

and then to render it effectively meaningless

for a long period of time.”

Kelly J. in O’Donoghue v. The Legal Aid Board,

the Minister for Justice, Equality and Law

Reform & Ors, 2004.

“The Convention is intended to guarantee

not rights that are theoretical or illusory

but rights that are practical and effective.”

Airey v. Ireland,

European Court of

Human Rights, 1979.

FLAC - 13 Lower Dorset Street, Dublin 1

LoCall: 1890 350 250 E-mail: [email protected] Tel: 01-874 5690 Web: www.flac.ie

“In the determination of his civil rights...…

everyone is entitled to a fair and public hearing

within a reasonable time...”

Article 6(1), European Convention

on Human Rights

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1

Civil Legal Aid in Ireland:Forty Years On

Printing Information ISBN: 1 87353214 8

© FLAC, April 2009

Copyright declaration:

You are free to copy, distribute or display this publication under

the following conditions:

4You must attribute the work to FLAC;

4You may not use this report for commercial purposes;

4You may not alter, transform or build upon this report.

For any reuse or distribution, you must make clear to others the

licence terms of this publication. Any of these conditions can be

waived if you get permission from FLAC.


LoCall: 1890 350 250

E-mail: [email protected]

Tel: 01-874 5690

Web: www.flac.ie

TT aa bb ll ee oo ff cc oo nn tt ee nn tt ss

1. Introduction 1

2. The civil legal aid scheme 3

3. Scope of the civil legal aid scheme 4

4. Practice of the Legal Aid Board 84.1 Waiting times 10

5. Financial eligibility to qualify for civil legal aid 125.1 Assessment of income 125.2 Assessment of capital 145.3 Contributions 14

6. Funding of the Legal Aid Board 17

7. Access to justice and unmet legal aid 187.1 Awareness of the Legal Aid Board 217.2 FLAC services 23

8. Conclusions and recommendations 26

—— BB oo xx ii nn dd ee xx ——

Box 1. Summary of “designated matters” excluded under the Civil Legal Aid Act 1995 4

Box 2. Case study: Exclusions 7

Box 3. Sample of allowances 1996-2006 13

Box 4. Case study: Contributions (autumn/winter 2005) 16

Box 5. Most common legal problems dealt with by organisations surveyed as part of FLAC’s unmet legal need project 19

Box 6. Type of information available to clients at organisations surveyed as part of FLAC’s unmet legal need project 19

Box 7. Awareness of Legal Aid Board, FLAC Survey October-December 2008 22

Box 8. Who accesses FLAC services? 24

Box 9. Areas of law discussed at FLAC centres in 2008 25

11 .. II n t r o d u c t i o n

“The purpose of the 1995 Act is that persons who meet the necessarycriteria shall receive legal aid. That carries the implication that the

entitlement to legal aid will be effective and of meaning.” 1

For forty years, FLAC (Free Legal Advice Centres) has beenworking towards the achievement of more equitable access tojustice for all in Ireland. Established in 1969 in order to provide

free legal advice to those who could not afford legal fees, FLAC alsolobbied the government to establish a civil legal aid scheme. Havingachieved this primary aim,2 a central tenet of FLAC’s work today,forty years on, is continuing to pressurise the government to providea comprehensive scheme.

Over the years, FLAC has produced reports which highlight the rightto civil legal aid and the inadequacies in the current system. In the2005 report Access to Justice – A Right or a Privilege? FLACincorporated not only an up-to-date review of the scheme as it was atthe time, but also a blueprint for action to improve the scheme.FLAC’s Data Collection Programme consistently reinforces the findingsof the report. The Legal Aid Board has overseen a number ofimprovements in the period since the report’s publication in 2005.These include an increased emphasis on Alternative DisputeResolution in family law matters, an updated website, a lowering ofthe means test threshold for qualification for legal aid and a widerrange of information leaflets.

In 2009, Ireland, like many countries worldwide, is in an economicrecession. The Irish government faces enormous challenges and thereare ramifications for all kinds of service provision. But the recessioncannot be used as a reason to deny access to legal services and

1

representation to those who need it the most. Equal access to justice isa fundamental human right for all. A right to legal aid exists in orderto implement the rights of equal access to justice and to an effectiveremedy.3 In human rights law, access to justice concerns not onlyformal and procedural rules granting access but it also relates toequality before the law, equality in the law and non-discrimination.Access to justice should be non-discriminatory; thus the purpose of alegal aid scheme is to help to achieve real access to justice foreveryone, especially the increasing number of people without theresources to pay for it themselves.

This document aims to provide an overview of the current position ofcivil legal aid in Ireland today,4 highlighting recent developments.Following the introduction, section two outlines the operation of thecivil legal aid scheme today, followed in section three by an overviewof the scope of the current scheme. Section four examines the practiceof the Legal Aid Board including a look at waiting times faced byapplicants for civil legal aid. The fifth section involves a discussion onthe financial qualification process for civil legal aid with a focus onthe means test and contributions to be made. The sixth sectionpresents a short note on the funding of the Legal Aid Board. The finalsection on conclusions and recommendations is preceded by sectionseven which examines the issue of unmet legal need in a sample areaof north east inner city Dublin as well as a general awareness of theexistence and services of the Legal Aid Board. An overview of FLAC’swork is also provided.

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Civil Legal Aid in Ireland: Forty Years On

22.. TThhee cciivviill lleeggaall aaiidd sscchheemmee

“An act to make provision for the grant by the state of legal aid andadvice to persons of insufficient means in civil cases.”

– Long title for the Civil Legal Aid Act 1995

The civil legal aid scheme in Ireland is established according tothe provisions of the Civil Legal Aid Act 1995 and regulationsof 1996, 2002 and 2006 made by the Minister for Justice,

Equality and Law Reform. The services of the scheme areadministered by the Legal Aid Board which was put on a statutoryfooting by the Act in 1995.

FLAC has noted that section 5(1) of the Act states that the principalfunction of the Legal Aid Board is to provide “[...]within the Board’sresources and subject to the other provisions of this Act, legal aid andadvice in civil cases to persons who satisfy the requirements of theAct.” Legal aid is defined as “representation by a solicitor of theBoard, or a solicitor or barrister engaged by the Board under section11, in any civil proceedings to which this section applies and includesall such assistance as is usually given by a solicitor and, whereappropriate, barrister in contemplation of, ancillary to or inconnection with, such proceedings, whether for the purposes ofarriving at or giving effect to any settlement in the proceedings orotherwise.”5 The definition of legal aid under the Act has beenextended to include representation of a rape complainant, by asolicitor or barrister engaged by the Legal Aid Board, who is liable toexamination on his or her past sexual history.6 The Minister forJustice, Equality and Law Reform retains the power to issue generaldirectives as to policy concerning legal aid and advice.7 No suchdirectives have been published.

3

33.. SSccooppee ooff tthhee cciivviill lleeggaall aaiidd sscchheemmee

Box 1

Summary of “designated matters” excluded under the Civil Legal Aid Act 1995

i. Defamation (unless as part of some counterclaims);

ii. Most disputes concerning rights and interests in or over land;

iii. Civil matters within the jurisdiction of the District Court (SmallClaims Procedure) Rules 1993;

iv. Licensing;

v. Conveyancing;

vi. Election petitions;

vii. Where an application for legal aid is made in a representative,fiduciary or official capacity and the Board is of the opinion thatlegal aid should not be granted, having respect to any source fromwhich the applicant is or may be entitled to be indemnified inrespect of the costs of proceedings concerned and any resourcesof the persons who would be likely to benefit from a successfuloutcome of the proceedings for the applicant;

viii. A matter which in the opinion of the Board, involves a case beingbrought by applicant as a member of a group or by arrangementwith a group of persons for the purpose of establishing a prece-dent in the determination of a point of law, or any other question,in which the members of the group have an interest;

ix. Any other matter relating to an application for legal aid which ismade by or on behalf of a person who is amember, and acting onbehalf, of a group of persons having the same interest in theproceedings concerned.

4

Because of the restrictive nature of the civil legal aid service inIreland, many of the people who require legal aid are denied it and asa result are effectively denied access to justice. Serious problemsremain with the scope8 of the legal aid scheme which is determinedby the Civil Legal Aid Act 1995 and the subsequent Civil Legal AidRegulations of 1996-2006.

The Civil Legal Aid Act provides for the exclusion of nine areas fromthe scope of the legal aid scheme. It does not prevent legal advicebeing delivered in these areas. Therefore, an applicant should alwaysbe able to receive this advice and should have the knowledge that heor she is entitled to such advice from a solicitor. The Minister forJustice, Equality and Law Reform, with the Minister for Finance, hasthe power to extend the Legal Aid Scheme but to date has not doneso. The blanket exclusion of any area of law will deny some deservingpeople their right of access to justice. As will be seen under section 7of this document, of the three areas of law most frequently dealt withby organisations based in the north east inner city area of Dublin whoparticipated in research by FLAC in 2007-2008, the civil legal aidscheme only provides assistance in one of the areas.

Currently, the scheme is confined to certain specified proceedings atthe District, Circuit, High or Supreme Courts. It is worth givingthought to the manner in which the marginalised access the law. It isoften through tribunals yet the Minister for Justice, Equality and LawReform, who has the power to do so by Ministerial Order, has notallowed the scheme to be extended to prescribed administrativetribunals such as the Employment Appeals Tribunal, the SocialWelfare Tribunal or the Equality Tribunal.9 While civil legal aid maybe granted to a person to take a case before the High Court forexample, it is not available to access the Social Welfare AppealsTribunal or most other tribunals. This is in spite of the fact that thesetribunals are a common means by which many poor people willattempt to access justice. These groups are left with no legal support.

5

3. Scope of the civil legal aid scheme

The recognition of the need to extend the civil legal aid scheme torepresentation at the Refugee Appeals Tribunal (RAT) is welcome.10 Anumber of various ad hoc schemes such as the Mental Health LegalAid Scheme,11 the Attorney General’s Scheme12 and the CoronersCourt Legal Aid Scheme13 which provide assistance to people withspecific needs, have been established.

The lack of availability of legal aid for persons facing all tribunals,other than the RAT, is not consistent with a vindication of the right toa fair hearing as guaranteed by the Irish courts and internationalhuman rights law. The European Court of Human Rights has heldthat in terms of the scope of the right to a fair trial under the EuropeanConvention on Human Rights, there was a positive duty on the stateto provide legal aid in matters where the rights and obligations of theindividual were in question and the matter was of such complexitythat the applicant could not reasonably be expected to effectivelyrepresent him or herself.14 Given that an appearance before a tribunalcan involve complex issues of law, both Irish and European Unionlaw, and that it could result in a significant impact in a person’s rightsand circumstances, everyone appearing before such a tribunal shouldhave the right to legal representation through legal aid, subject to theusual qualification criteria.

FLAC has followed up with some of the matters which arise throughthe telephone information line or through Data Collection Formsfrom the FLAC clinics, by appealing decisions against refusals of civillegal aid.

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Box 2

Case study: Exclusions (autumn/winter 2006)

Eviction proceedings were taken by a local authority against atenant pursuant to Section 62(3) of the Housing Act 1966 on thebasis of alleged anti-social behaviour. The tenant applied for legalaid and fulfilled the financial eligibility criteria, but on meetingwith a solicitor of the Legal Aid Board, she was refused legal aidbecause the case fell outside the remit of the Legal Aid Board, thatis, it was said to be a dispute concerning rights and interests in orover land. She called FLAC’s information line for help. FLACappealed the refusal on the grounds that:

1. This is not so much a dispute concerning a “right or interestover land” as a dispute concerning alleged anti-socialbehaviour;

2. The tenant deserved representation as the case involved thefundamental human rights of the applicant and involvescomplicated matters of law, and it is a matter of the utmostpersonal importance to her or;

3. A refusal of legal aid would cause hardship to the applicant.

This appeal was granted in December 2006, on the basisthat to refuse it would cause hardship to the applicant.

7

3. Scope of the civil legal aid scheme

4. Practice of the Legal Aid Board

The Legal Aid Board predominantly deals with family lawissues in spite of its broader remit.15 The Board consistentlymaintains that all Law Centre staff are aware of its remit.

Nonetheless, people who have contacted FLAC’s telephoneinformation line have reported that they have been advised at LegalAid Board Law Centres that they cannot apply for civil legal aid iftheir case relates to areas of law other than family law such as debt forexample, which is in fact within the remit of the Board. While familylaw is a very important area of law for the work of the Legal AidBoard and those who use its services, FLAC’s data shows that onlyapproximately one-third of the queries received at FLAC centresrelate to family law.

Other areas of law such as local authority housing, for which there isa great need for legal assistance, are not covered by the civil legal aidscheme.16 This shows that there is a need for access to legal aid andadvice relating to other areas of law, which while they are well withinthe mandate of the Legal Aid Board, there is either no knowledge ofthe Board’s services in these areas, or some people are informallydiscouraged from applying in areas other than family law. On theFLAC telephone information line in 2008, there has been an increasein queries relating to debt and employment for example, with querieson family law issues dropping from a quarter to a fifth of all queriessince 2006.17

In 2008, a High Court judge asked FLAC to assist in a case relating toa family issue involving children. He said that in such cases, it isessential that both parties are represented as he did not think that thecourt could have come to the nuanced conclusion that had beenreached without such representation. He said that the court would

8


have found it very difficult if the client had not been represented inthe case. The judge stated that he was grateful to FLAC and the BarCouncil’s Voluntary Assistance Scheme for the assistance provided byboth organisations in the case.

Anyone who satisfies the requirements of the Civil Legal Aid Act 1995has a statutory right to receive civil legal aid.18 Anyone who fails toadvise a client of this is denying the client their entitlement toassistance in accessing justice. Anecdotally, FLAC is aware of situationsin which people have been told in Legal Aid Board Law Centres thattheir situation would not qualify them for legal aid and thus, arediscouraged from applying. Quite apart from the fact that only theBoard’s head office is entitled to make a decision to refuse legal aid, thisleaves the person in a vulnerable position as they have been unofficiallydenied legal aid without any knowledge of the recourses open to them.Everyone is entitled to apply for legal aid and should be encouraged toapply to have their eligibility judged as intended by the legislation andto have a refusal subjected to the due process of an appeal if they are soentitled. Where an application for legal aid is refused, the applicant isentitled to reasons for the refusal in writing and to appeal thisdecision.19 The reasons currently given are uninformative and it is notpossible to judge from a refusal letter exactly why an application hasnot been granted. The decisions made by the Board are final; there is noaccess to the office of the Ombudsman.

Applicants with urgent cases are not always aware of the PrivatePractitioners Scheme. The scheme exists for those who have a courtdate in the District Court only relating to a family law matter and whocannot get an appointment with the Legal Aid Board before the courtdate. The scheme deals with barring and protection orders,maintenance, guardianship, custody and access, as well as variationand discharge of these orders.

The lawyers who work at the Legal Aid Board Law Centres operateunder substantial pressure on both their time and other resources and

9


they deal with large clients lists. FLAC recognises the dedication andhigh quality of the advice and services of these lawyers and thecommitted nature of the staff. At this juncture, FLAC alsoacknowledges the politicians and public servants who havesupported civil legal aid and the right to legal aid within Irish policyover the years.

44..11 WWaaiittiinngg ttiimmeess

Until relatively recently, the Legal Aid Board was hindered by longdelays in the provision of a solicitor to prospective clients. In the HighCourt decision of O’Donoghue v. The Legal Aid Board, the Minister forJustice Equality and Law Reform & Ors,20 Kelly J stated that a clientshould have to wait no longer than two to four months to get anappointment with a solicitor at the Legal Aid Board. Ms. O’Donoghuehad been waiting 25 months to get an appointment with a solicitor atthe Legal Aid Board. After that, waiting lists in most cases werereduced and have decreased consistently since 2005. Recent monthshowever have seen lists creep up again. In December 2008 four LegalAid Board centres had waiting lists of five or six months21 and sixteenof the Legal Aid Board’s twenty-nine law centres had waiting lists ofthree or four months. In a FLAC survey conducted over a three monthperiod in the latter part of 2008, of those who had successfully appliedfor civil legal aid, 42% of people had waited for three months beforetheir first consultation with a solicitor. One man who contacted FLACin July 2008 reported that the Legal Aid Board Law Centre hadadvised him that it would take six months to get an appointment witha solicitor and a further one month to make the initial application andto carry out the means test. One client was unable to contact her LegalAid Board solicitor and was consequently unable to secure an earlyhearing date as a result. This can result in potential clients beingdiscouraged from applying from the outset. On the other hand, it isworth noting that some centres do conduct the means assessment onthe same day that the client submits his or her application.22

10


Applicants are not always informed of the possibility of asking thejudge for an adjournment while they are waiting for an appointmentwith a legal aid solicitor. The appointment systems seem to lackflexibility in dealing with urgent cases, with little support andinformation for such applicants. The Legal Aid Board states that some22% of applicants receive a priority appointment and that managingsolicitors in Law Centres have flexibility in dealing with urgent cases.This is principally in family law cases.

Judicial practice also varies and not all judges are prepared to wait thelength of time required for the applicant to actually access legal aid.There is a need for more information for clients of the Legal Aid Boardand for all those involved in the administration of justice tounderstand better both the extent and the limitations of the civil legalaid scheme. The Courts Service should highlight the work of LegalAid Board in all of the documents they publish in order to reach awider audience. A greater understanding should be developedbetween the Legal Aid Board and Courts Service so that they are moreaware of each other’s work. This knowledge can then be shared withthe service users of each body.

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5. Financial eligibility to qualify for civil legal aid

Rather than be assessed on a client’s need to access legalservices (as is the position for criminal legal aid), Ireland’scivil legal aid scheme is more bureaucratic and sets three tests

to be passed in order for a person to be deemed eligible to be grantedcivil legal aid by the Legal Aid Board. The client must pass anoverarching principle test,23 a merits test24 and a means test (thefigures for which are prescribed by the Minister for Justice, Equalityand Law Reform with the consent of the Minister for Finance).25

The financial test is significant first because it regulates whether aperson is eligible for legal aid at all and secondly because itdetermines the amount that the person will pay as a contribution tothe cost of the service they receive. For the most part, a person’seligibility to apply for civil legal aid will be decided on income but forsome, there will also be capital eligibility test.

55..11 AAsssseessssmmeenntt ooff iinnccoommee

Under the current eligibility limits for the means test which were set in2006 26 a person will be eligible for civil legal aid if his or her annualdisposable income is under €18,000.27 The Civil Legal Aid Regulationsprovide that the resources of applicant’s spouse or partner may be treatedas those of the applicant for the purpose of the application for legal aid incertain circumstances. The current maximum disposable income is anincrease of €5,000 (38%) on the previous amount established under the2002 regulations; this was hopelessly outdated given the rise in the cost ofliving standards in the intervening period. Certain expenses, in the formof allowances, are excluded from the calculation of gross income; whenthese are deducted, the remainder constitutes disposable income. Anumber of the maximum figures for allowances were increased under the2006 regulation as outlined in the table overleaf.

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Category of Maximum Amount Maximum Amount MaximumAmountAllowance 1996 28 2002 2006 (current)

Spouse €1,686.56 €1,900 €3,500

Each dependent

€848.36 €1,100 €1,600

Childcare per child

n/a €1,100 €6,000 29

Accommodation €3,779.52 €4,900 €8,000

Income Tax Full Full Full

PRSI Full Full Full

Ex gratia n/a n/a €1,040

Loan interest payments

€764.54 n/a n/a

Hire purchase payments

€375.92 n/a n/a

Work travel expenses

€375.92 n/a n/a

Medical health insurance

€952.58 n/a n/a

These increases were long overdue and while welcome are stillinadequate. For example, while the accommodation allowanceincreased by approximately €258 per month under the 2006regulations, this allows €666 to be deducted per month for the meanstest calculation. This remains far below the average monthlyaccommodation costs whether for private rented accommodation or amortgage property. The childcare cost allowance increasedsubstantially by €4,900 which represents an improvement butunfortunately does not go far enough to cover actual childcare costs inIreland which in 2005 was up to €10,000.30 Child dependent allowanceis reduced in accordance with maintenance received per child from theother parent. The increase in consumer debt in Ireland, as well as thehigh levels at which this stands, is not reflected in allowances, withloan interest payments and hire purchase interest payments beingremoved from the list of allowances in 2002. The removal of other

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Box 3 Sample of allowances 1996-2006

routine costs such as work travel expenses and medical healthinsurance as allowances, is also disappointing.31

55..22 AAsssseessssmmeenntt ooff ccaappiittaall

As stated previously, as well as being assessedon disposable income, an applicant for civillegal aid must also submit to a capitalassessment. If an applicant’s disposablecapital is in excess of €320,000, they will notqualify for legal aid. FLAC welcomes thedevelopment in 2006 that the value of theapplicant’s family home is no longerconsidered part of a person’s capital for thepurposes of qualifying for legal aid.32 Nor willthe value of an applicant’s general householdgoods continue to be taken into considerationas capital. It is also the case that previous specific rules in relation tothe assessment of capital of farmland no longer apply; it will be treatedas any other capital resource which can include property, investmentsand cars. It is possible that the payment of a capital contribution mayresult in effectively excluding those on very low incomes but whopossess land such as farmers.33 This is because a farmer’s land will beconsidered capital for the purposes of calculating a contribution,meaning that the farmer may have to pay a high contribution in spiteof a relatively low disposable income.

55..33 CCoonnttrriibbuuttiioonnss

While everyone who requires criminal legal aid is entitled to it free ofcharge and based on a personal means test by the adjudicating judge,civil legal aid in Ireland is not free and except in cases of unduehardship, all Legal Aid Board clients are expected to pay acontribution. This is based on the calculation of their income andassets in the means test. Thus a discrepancy arises between the access

14


’A person with a disposableincome of€13,000 is liableto pay themaximumcontribution of€150 for aconsultationwith a solicitor.

to justice available to a person who is tried for a criminal offence andfor those who need to use the law for non-criminal matters even wherethere may be very serious consequences. For instance, a person with acivil legal issue who cannot afford legal advice or representation couldface a range of serious consequences such as denial of access to one’schildren, losing his or her home and a range of other related negativeoutcomes, including on occasion imprisonment for debt.

A recent FLAC survey shows that of those who had successfullyapplied to the Legal Aid Board for civil legal aid since 2006, 50% werenot aware that they would have to make payments towards legal aid.Contributions are to be paid in advance of receiving the service.

A 2008 amendment to the Civil Legal Aid Act means that whilstpreviously the Legal Aid Board could provide legal aid or advicewithout reference to an applicant’s financial resources, or that theycould waive any contribution payable or accept a lower contribution,they can now only do so if a failure to do so would cause “unduehardship” to the applicant.34 It is for the Legal Aid Board to interpret“undue” hardship. It is worth noting that subject to limited exceptions,the Legal Aid Board is entitled to charge the full fees it has incurred inthe course of the provision of legal services from monies or propertyrecovered as a result of the legal services.

Under the Civil Legal Aid Regulations 2006, the minimum incomecontribution for legal advice was increased from €6 to €10 and themaximum contribution from €100 to €150. For legal aid, minimumpayments rose from €35 to €50 and the maximum incomecontribution to €1,675.

Regarding capital contributions to be made, no capital contribution ispayable “in respect of that portion of the applicant’s disposable capitalwhich is less than €4,000.”35 Capital contributions are required inrespect of legal aid only,36 not in the case of legal advice. If an applicanthas a disposable capital of €35,000, he or she will pay a capitalcontribution of €775. If their disposable capital is €100,000, his or hercapital contribution will be €4,700.

15


In order to vindicate the right of a person to representation where thatis needed for a fair hearing, civil legal aid should be available on thesame basis as criminal legal aid. It should be free where necessary. Ata minimum, FLAC has previously called for the financial eligibilitycriteria to be measured annually against national poverty proofingstandards and for the publication of the underlying analysis by theDepartment of Justice, Equality and Law Reform.37 There are noprovisions to index link the allowance or income criteria or to providefor increases in the cost of living or in the cost of legal services. Indeed,the new threshold and allowance figures for means test qualificationare now three years old.

Case study: Contributions (autumn/winter 2005)

A man who had been living on his disability allowance and disability pensionsince 1996 was referred to FLAC for assistance relating to the contributionhe had been instructed to pay by the Legal Aid Board. He had sought civillegal aid in order to resolve domestic matters relating to the estrangementof his wife, which involved him and his two teenage children moving fromthe family home to alternative accommodation.

He was entirely financially responsible for the rent and maintenance of bothhomes. In spite of his situation, the LAB had deemed his disposable incometo amount to €11,118.28. He was thereby required to pay a contribution of€739. On the advice of FLAC, he requested and was refused a review of thecontribution and subsequently appealed that decision. FLAC also advisedhim to request that his contribution be waived under s. 37 of the Civil LegalAid Act 1995 which allows legal aid to be granted without reference to thefinancial resources or which provides for the acceptance of a lowercontribution. He was also advised to note that while the Board may onlywaive or accept a lower contribution in the case of an applicant whoseincome contribution is assessed at €35 under regulation 21(9) thatregulation does not specifically exclude the waiver or reduction ofcontributions of a greater sum than the minimum of €35.

The Legal Aid Board refunded him all but €35 of the €739 he had paid tothem.

16

Box 4


66.. FFunding of the Legal Aid Board

On the occasion of the launch of theCivil Legal Aid Regulations 2006,the then Minister for Justice,

Equality and Law Reform, Mr. MichaelMcDowell claimed that the revisedregulations were “further evidence of [his]commitment to the delivery of anaccessible and fair civil legal aid system”.He said that he had “increased funding forthe scheme significantly in recent years”.38

This contributed, at the time, to thereduction in waiting times to see a solicitoras noted above. The increase in the incomethreshold for qualification for civil legalaid has resulted in a correspondingincrease in the number of people whoapply for the service. From 2007 to 2008,there was an increase of 17% in applicants.

In 2007, the Board received almost €1.8 million from clients.39 Itreceived €659,520 in contributions from legally aided persons and€1,128,820 in costs recovered.40 As a response to the financial crisis of2008, the government made a range of cuts to the funding of publicservices in its budget of 2009. There was no increase in the funding ofthe Legal Aid Board but funding was reduced by 1%.41 Given theincreased costs involved in running the service, FLAC estimates thatthe actual cut faced by the Legal Aid Board was 3-4%. This results inconcern about the capacity of the Legal Aid Board to provide anadequate service for the increased number of applicants who willnow qualify for legal aid under the revised means test and as a resultof the economic downturn.

17’“If the right tolegal aid is to berespected, a civillegal aid schememust addressunmet legalneed.”

FLAC, Access toJustice: A right or aprivilege?

18

77 AAccess to Justice and unmet legal aid

Access to justice means more than access to civil legal aid andan appointment with a lawyer. It is about meeting equallythe legal needs of every community in Ireland. It is about

access to the courts and lawmakers, to service providers and basicinformation on legal rights and entitlements.

This section provides a snapshot of a community in the north eastinner city Dublin. The area has a population of over 35,000 andwitnessed a population increase of almost 40% from 1996-2006. In2006, almost 35% of the area’s population comprised non-Irishnationals and 55% of all households with children in the area wereheaded by a lone parent. 2,587 of the population lived in localauthority housing and 14.5% were unemployed at the time thesefigures were recorded.42 In order to gauge the climate regardingaccess to justice and legal need, in late 2007 and early 2008, FLACapproached 67 organisations providing services in the area with aview to carrying out a study on unmet legal need. 40 of theseorganisations agreed to take part. The study 43 yielded a number ofinteresting results in terms of identifying the ongoing failure of theState and the legal system for those who have neither adequateknowledge of, nor access to, their legal rights and entitlements.

When asked whether their organisation provides information on legalrights and entitlements, 67.5% (27/40) stated that they do so with37.5% (15/40) stating that their organisation provides legal advice toclients. 75% (30/40) of organisations responded that they would likemore support in their work with legal elements. The areas of law forwhich they would like more support include immigration andasylum, housing, debt, employment.

19

7. Access to justice and unmet legal aid

Box 5

Most common legal problems dealt with by organisations surveyed aspart of FLAC’s unmet legal need project

Local authority housing 31/40 77.5%Social welfare entitlements 31 77.5%Domestic violence 29 72.5%

The civil legal aid scheme only offers assistance in one of the top threeareas which the organisations most commonly deal with in terms oflegal problems. Domestic violence is covered by both the civil legalaid scheme and the criminal legal aid scheme.

The major barriers to obtaining legal information in north inner cityDublin, according to these organisations are a lack of awareness thata legal issue exists (70%) and costs (70%). Perceived complexities(52.5%), a belief that the person would not be successful (50%) andliteracy (47.5%) were the next most frequent barriers. Manyorganisations need to refer those whom they support further.

Type of information available to clients at organisations surveyed aspart of FLAC’s unmet legal need project

Referral 36/40 90%To FLAC 26 65%Private Solicitor 22 55%To Legal Aid Board 21 52.5%Information 32 80%Advice 24 60%Counselling 14 35%Other 16 40%

While 65% of the organisations referred their clients to FLAC’sservices, only 52.5% refer to the Legal Aid Board and 55% to a privatesolicitor. 62.5% of organisations would describe the level of awarenessamong their clients of their legal rights and entitlements as “not

Box 6

good” with only 2.5% reporting a “good” awareness and nonereporting a “very good” awareness.

Concerning knowledge of the services of theLegal Aid Board, there was a general propensityto confuse the Legal Aid Board with FLAC.37.5% of the organisations were not aware thatthe Legal Aid Board Law Centres are mandatedto provide legal services in all areas of law otherthan criminal law and some areas of civil lawwhich are excluded by law.44 For those who hadexperience of the services of the Legal Aid Board,20% had found the experience to be “not verygood”, 15% were happy with their experienceand 12.5% reported a “mediocre” experience.While the area of law for which the organisationsreferred clients to FLAC’s evening clinics mostfrequently was family issues (47.5%), this wasfollowed by immigration (35%) and property/housing (32.5%).

It is clear from the study that accessing justice remains a problem forthe people of the north inner city in Dublin. Substantial unmet legalneed continues to exist. The knowledge and experience of theorganisations and their clients with the Legal Aid Board is less thansatisfactory and issues remain outstanding regarding familiarity withthe state-funded civil legal aid scheme.

A fundamental flaw in the current legal aid system is the exclusion ofcertain areas of law from its remit. The most prevalent legal problemsaffecting people who present themselves at these organisations arenot addressed by the legal aid scheme. This is reflected in FLAC’sdata, which is discussed in the next section. While the communityorganisations provide other vital services, they do not, and nor is it

20


’37.5% oforganisationsasked were notaware of theremit of the LegalAid Board LawCentres that is,that the LawCentres aremandated toprovide legalservices in allareas of lawother thancriminal law andmany areas ofcivil law.

their role, to provide the legal services omitted by the civil legal aidscheme.

77..11 AAwwaarreenneessss ooff tthhee LLeeggaall AAiidd BBooaarrdd

The Legal Aid Board is under a statutory obligation to disseminateinformation in relation to its services and the availability of thoseservices “for the benefit of those for whom its services are madeavailable”.45 The Legal Aid Board has published a small number ofadvertisements in the format of leaflets and posters over a short periodof a few weeks in national buses and elsewhere. There is no informationto be found in the public spaces in court buildings. There appears to bea mixed level of awareness among judges as to the work of the Legal AidBoard and inconsistency exists in the judiciary as to whether a judgefeels it necessary to refer a person before him to the Legal Aid Board.

FLAC surveyed 243 people in FLAC centres throughout the countryover the period of October to December 2008. For results, see Box 6.Of the 51 who answered that they did know where to apply for civillegal aid, their answers included that they would apply:

4 the post office;

4 at FLAC;

4 at the Department of Heritage;

4 at their solicitor’s office;

4 their Citizens Information Centre.

For those who did not apply for civil legal aid since 2006, reasons forthis included, a lack of knowledge, they were under the impressionthat the Legal Aid Board was a family law service only, they were putoff by the waiting times, they needed legal advice quickly or theythought the Legal Aid Board covered criminal matters only.

21


22


243 (100%) people surveyed at FLAC Centres

Diagram: Awareness of Legal Aid Board, FLAC Survey Oct-Dec 2008

125 (51.4%) peoplehad never heard of the

Legal Aid Board

Only 10 people (9.4%)had applied for legalaid since 2006.

67 (63%) of those who had heard of the Legal Aid Board did not know that civil legal aid is not free.

55 people (51.8%)did not know where toapply for Civil Legal Aid.

12 (4.9%) peoplehad heard of theLegal Aid Boardat the FLAC Centre

Further break-downof this segment

00

1010

2020

3030

4040

5050

6060

7070

8080

106 (43.6%) peoplehad heard of theLegal Aid Board

Box 7

AAwwaarreenneessss ooff LLeeggaall AAiidd BBooaarrdd,, FFLLAACC SSuurrvveeyy OOccttoobbeerr ttoo DDeecceemmbbeerr 22000088

The current legal aid system does not meet the standards establishedby the European Court of Human Rights in the Airey case;46 that isthat the right of access to the courts 47 be “practical and effective”. Thesupports given by the state to accomplish the vindication of this rightare inadequate. In 2007, the Legal Aid Board had just 109 solicitors onstaff in 33 full-time law centres and 12 part-time centres 48 around thecountry for a population of over 4 million people. 49 In spite of a steeppopulation increase over the past nine years, only three new centreshave been established by the Legal Aid Board since 2000.50 One of thegeneral law centres of the Board has recently been closed. All of thenew centres were refugee legal centres. The Legal Aid Board must bein a position to deliver a service to all who are entitled to receive itwhich at a minimum means many of those on social welfare and withlow incomes. Until such time as adequate capacity is given to theLegal Aid Board to provide the service to those entitled to it, theserights will remain “theoretical and illusory”.51

77..22 FFLLAACC sseerrvviicceess

FLAC supports almost 70 Advice Centres nationwide, many of themin conjunction with Citizen Information Centres. The FLAC centresare staffed by fully qualified solicitors and barristers who volunteer toprovide private consultations to members of the community.Although people who present themselves at the centres are not meanstested, the service is intended for those who cannot afford to engagea private solicitor. In many cases, legal advice is required withoutdelay and FLAC centres often fill this need for people who cannotwait for the advice or for an appointment with a solicitor at a LegalAid Board Law Centre.

23


24


WHO ACCESSES FLAC’S SERVICES?52

Sex:Male: 50.6%Female: 49.4%

Where are the clients from?

Ireland: 65.4%Pakistan: 3.3%Poland: 2.5%USA: 2.1%Nigeria: 2.1%Bangladesh: 1.6%

Age:20-29 yrs: 22%30-39 yrs: 32.9%40-49 yrs: 21.8%50-64 yrs: 17.7%Over 65 yrs: 4.1%

Source of incomeEmployment: 56.4% Social welfare/income support: 25.5%

State/private pension: 6.2%Maintenance: 2.05%Other: 8.2%

Marital status:Single: 44.4%Married: 33.3%Separated/divorced: 14.4%Cohabiting: 3.7%Widow/er: 3.3%

Dependent children:

No children: 56.8%1 child: 18.1%

2 children: 13.1%3 children: 6.6%Over 4 children: 4.5%Other dependents: 4.9%

Labour force status:Full-time employee: 32.9%Part-time employee: 17.3%Self-employed: 4.9%Community education scheme: 0.8%Unemployed: 22%Retired/pension: 4.9%Student: 5.4%

Over the years, the pattern of areas of law on which people requestadvice and information at FLAC Centres is consistent and remainssimilar to those outlined below for 2008 (except for gradual increasesin employment and credit and debt-related issues). Queries received

Box 8

Family

over FLAC telephone information lines support this. While familylaw features prominently in the areas of law discussed at FLACcentres in 2008, other areas such as property, housing and credit anddebt also feature highly. Areas which often affect the less well-off suchas employment and social welfare law also appear on the list yet thecurrent legal aid scheme does not provide representation at tribunalssuch as the Employment Appeals Tribunal or the Social WelfareTribunal.

It is important to remember that FLAC Centres were never intendedto be more than a stop-gap means of access to legal information andadvice for those who cannot otherwise afford it. It is not meant to bea substitute for a comprehensive state civil legal aid scheme.

25


Criminal Law

Total legal queries

2008

Count %

2438 31.5

Employment Law 1094 14.1

Succession / Probate 275 3.6

Property 439 5.7

Housing / Landlord 521 6.7

Consumer Law 505 6.5

Credit and Debt 259 3.4

Neighbour Dispute 157 2.0

Immigration / Refugee law 258 3.3

Negligence / Personal Injury 413 5.3

Wills/Power of Attorney 268 3.5

Client-Solicitor Relations 89 1.2

Social Welfare Law 139 1.8

Other civil matters 446 5.8

Total non-family 4863 62.7

432 5.6

7,733 100

Civil Non-Law Family

Areas of law discussed at FLAC centres 2008 53

Box 9

88.. CConclusions and recommendations

As FLAC celebrates the fortieth year of its work, theorganisation is calling on the government to prioritise theneeds of those who require aid and assistance in order to

access legal services and the courts. Even with a fully functioning legalaid system, this alone will not provide universal access to justice.Access to justice requires a community-orientated approachencompassing the needs of marginalised groups often left without aplatform to voice their needs. This should involve at a minimum legaleducation within the community. FLAC believes that the followingrecommendations would be a crucial in order to enhance today’s civillegal aid scheme:

4 Reconsider the “designated areas” or exclusions under the1995 Act;

4 Increase the visibility and awareness of civil legal aid scheme;

4 Establish a better understanding between Legal Aid Board andthe Courts Service so that they are aware of each other’s work;

4 The Courts Service should highlight the work of the Legal AidBoard in all of the documents they publish;

4 There should be further cooperation, referral and awareness ofthe remit and work between Legal Aid Board law centres,Citizens Information Centres and the Money, Advice andBudgeting Service;

4 An out-of-hours Legal Aid Board service should beestablished.

26

FLAC’s A Blueprint for Civil LegalAid in Ireland which forms part ofthe 2005 report Access to Justice: ARight or a Privilege? details how acomprehensive, fair and equit-able civil legal aid scheme mightbe achieved.

Though much has been done toimprove the scheme, theprovisions of the Blueprint arenot yet a reality. While this reportis to be issued at a time of limitednational resources, the economicdownturn cannot be used as ajustification to limit the protectionof the rights of the individual.Nor can it be used as a reason tofail to vindicate those rights.

FLAC remains committed to the achievement of real access to justice foreveryone and will continue to work towards the realisation of acomprehensive civil legal aid scheme in Ireland.

27

8. Conclusions and recommendations

1 As per Kelly J in O’Donoghue v. The Legal

Aid Board, the Minister for Justice, Equality

and Law Reform, Ireland & the Attorney

General [2004] IEHC 413

2 The state-funded civil legal aid schemewas established in Ireland in 1979 and iscurrently based on the provisions of theCivil Legal Aid Act 1995. The systemoperates through the Legal Aid Boardwhich is appointed by the Minister forJustice, Equality and Law Reform. TheMinister also decides the conditions underwhich civil legal aid and advice areavailable.

3 For a detailed discussion, see Access to

Justice: A right or a privilege? A Blueprint for

Civil Legal Aid in Ireland, FLAC, 2005,chapter 1.

4 This document consciously does notaddress the work carried out by theRefugee Legal Service, a body whichprovides legal services for asylum seekersin Ireland.

5 Section 27(1) Civil Legal Aid Act 1995

6 Section 35(2) Sex Offenders Act 2001

7 Section 7 Civil Legal Aid Act 1995

8 See section 28(9)(a) of the Civil Legal AidAct 1995

9 It was held in Corcoran v. Minister for Social

Welfare [1992] ILRM 133 that aconstitutional right to legal aid to personsappearing before administrative tribunalsdoes not exist.

10 Civil Legal Aid (Refugee Appeals Tribunal)Order 2005

11 Section 17, Mental Health Act 2001

12 The Attorney General’s Scheme providespayment for legal representation in certaintypes of legal cases that are not covered bythe civil legal aid or the criminal legal aidschemes, seewww.attorneygeneral.ie/ac/agscheme.htmlfor more information.

13 The Coroners Court Legal Aid Schemeallows a person to apply to theDepartment of Justice, Equality and LawReform for legal aid to meet the costs oflegal representation at inquests into deathsthat occur in state care such as Gardastations. This scheme currently operates ona discretionary basis. Legislation has beenproposed to place the scheme on astatutory footing but there has been nomovement on it since it concluded thesecond stage of the legislative process inOctober 2007.

14 Airey v. Ireland, 6289/73 [1979] 2 EHRR 305(9 October 1979), [1981] ECHR1 (6February 1981): “the Convention isintended to guarantee not rights that aretheoretical or illusory but rights that arepractical and effective”.

15 Legal Aid Board Annual Report 2007, p.12-13. Just over two-thirds of the caseswhere legal advice was given by the Boardrelated to family law in 2007. 87% of legalaid cases over the same period related tofamily law.

16 The Citizens Information Services SurveyReport 2008 shows that two-thirds of theirclients asked about social welfare issues,followed by employments rights at 15%,

28

EEndnotes

housing related queries accounted for 12%of overall queries as did health servicesand 11% related to HSE payments.

17 Legal advice constitutes oral and/orwritten advice given by a barrister orsolicitor. Legal aid refers to representationby a barrister or solicitor in courtproceedings.

18 Regulation 12, Civil Legal Aid Regulation1996

19 O’Donoghue v. The Legal Aid Board, the

Minister for Justice, Equality and Law Reform,

Ireland & the Attorney General [2004] IEHC413. In this case, while O’Donoghuesucceeded against the State, the Legal AidBoard was found not to have been inbreach of its statutory duty. The HighCourt found that the delay in providinglegal aid to O’Donoghue was the soleresult of the lack of resources madeavailable to the Board by the State. Thedelay in granting the civil legal aidcertificate to O’Donoghue amounted to abreach of her constitutional right of accessto the courts and fair procedures.

20 These were the Law Centres in Kildare,Westmeath, Clondalkin in Dublin andPope’s Quay in Cork.

21 FLAC appreciates that some Law Centresoperate successful and effective workpractices in terms of timing and theprocessing of applications for legal aid.FLAC is in a position that it is more likelyto hear about difficulties people face whenthey approach the Legal Aid Board ratherthan the good practices which exist in theLaw Centres.

22 The overarching principle test is that aperson will only be granted legal aid

where a reasonably prudent person who isnot eligible for legal aid would be likely totake the case by funding it themselves. Itmust be clear to the Legal Aid Board that asolicitor or barrister would reasonably belikely to advise a client to take a case in thesame circumstances.

23 In terms of the merits test, Section 28(2)Civil Legal Aid Act 1995 lays out thecriteria to be considered by the Legal AidBoard in determining eligibility for themerits test for legal aid. They are that theremust be:

(a) reasonable grounds as a matter of law forinstituting or defending proceedings;

(b) reasonable grounds of success in theproceedings;

(c) reasonableness in granting legal aidhaving regard to all the circumstances ofthe case such as probable cost to theBoard; and

(d) a lack of a more appropriate method thancourt proceedings for dealing with theproblem.

24 Law Society of Ireland, Legal AidTaskforce, Civil Legal Aid in Ireland:

Information for the Profession, 2008, pg. 18-26

25 Regulation 3(d) Civil Legal AidRegulations 2006

26 This document quotes figures which aresubject to change by Ministerial Regulationat any time and aim to be correct as ofJanuary 2009.

27 All figures have been converted from puntto euro for purposes of comparison.

28 As stated in the box title, all figures hererepresent the maximum amount available.

29

Endnotes

With regard to childcare per child andaccommodation, the allowance available isa maximum of €6,000 with respect tochildcare and €8,000 with respect toaccommodation; a person is only entitledto an allowance of the expenses theyactually incurred.

29 Consumer Association, Childcare costs, 2005pg. 376

30 Regulation 16(g) Civil Legal Aid ActRegulations 1996

31 Regulation 3(f) Civil Legal Aid Regulations2006, this amends the anomaly whereby alow-income applicant who owned theirhome or had substantial equity therein,could not qualify for legal aid or had topay a large contribution for it because ofproperty price inflation. Previously it hadbeen the case that the value of anapplicant’s family home would only bedisregarded in a capital assessment in thecase of a married couple if it was thesubject of a dispute, usually in family lawproceedings.

32 National Farm Survey 2006 (most recentavailable) shows that the average incomeof a farming family was €16,680, adecrease of 25.7% on 2005 when theaverage income was €22,459.

33 Under Section 6 of the Enforcement ofCourt Orders Act 1940 (amending Section18 of the Enforcement of Court Orders Act1926)

34 Section 80 Civil Law (MiscellaneousProvisions) Act 2008

35 Civil Legal Aid Regulations 2006,regulation 3(h). These figures hadpreviously been set at €79,400

36 It should be noted that contribution costsare restricted to the actual cost to the LegalAid Board of providing the service, withreference to the chargeable solicitor hourson the case together with any otherexpenses. A further limit is imposed by theamount that the Legal Aid Board pays forthe services of a private practitioner.

37 FLAC, Access to Justice: a Right or a Privilege?

A Blueprint for Civil Legal Aid in Ireland, 2005,pg. 64

38 Press Release of the Department of JusticeEquality and Law Reform, Minister

McDowell introduces new regulations to

improve access to civil legal aid, 31 August2006

39 Legal Aid Board, Annual Report 2007, p. 36

40 Ibid, p. 36. In addition, the Legal Aid Boardwould be entitled to fees in cases that itwins where it has challenged governmentpractice. However, the convention inasylum judicial review cases is not to claimthese fees because it would simply betransferring money from one governmentfunction to another.

41 The Legal Aid Board budget of€26,998,000 was marginally reduced to€26,618,000 in 2008, a cut of 1%.

42 Figures are from Dublin Inner CityPartnership, Census 2006 Data. In 2006, thenorth east inner city area had a populationof 35,159. The percentage populationchange from 1996-2006 was 39.98%.

43 The study involved a detailedquestionnaire completed by 40 differentorganisations in the north inner city areaof Dublin who responded as to theirexperience and that of those who accesstheir services.

30


44 Section 28(9)(a) Civil Legal Aid Act 1995

45 Section 5(2) Civil Legal Aid Act 1995

46 Airey v. Ireland, 6289/73 [1979] 2 EHRR 305(9 October 1979), [1981] ECHR1 (6 February1981): “the Convention is intended toguarantee not rights that are theoretical orillusory but rights that are practical andeffective”.

47 Article 6(1) European Convention onHuman Rights 1950

48 See n-39, pp. 7 and 34

49 Central Statistics Office, Principal CSO

Statistics: Population by age.

50 Legal Aid Board Annual Reports 2000 –2007 Sections on Capacity of the Board tomeet demand for services, structure andservice provision.

51 Ibid at n-46

52 FLAC, Civil Legal Aid Survey 2008

53 47 FLAC centres participate in the DataCollection programme from which thisinformation is compiled.

31

Endnotes

32


Civil Legal Aid

in Ireland:

Forty Years OnCivil Legal Aid

in Ireland:

Forty Years On

“It is not enough to set up a scheme for the

provision of legal aid to necessitous persons

and then to render it effectively meaningless

for a long period of time.”

Kelly J. in O’Donoghue v. The Legal Aid Board,

the Minister for Justice, Equality and Law

Reform & Ors, 2004.

“The Convention is intended to guarantee

not rights that are theoretical or illusory

but rights that are practical and effective.”

Airey v. Ireland,

European Court of

Human Rights, 1979.


LoCall: 1890 350 250 E-mail: [email protected] Tel: 01-874 5690 Web: www.flac.ie

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